IMMIGRATION OPTIONS FOR NANNIES

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    IMMIGRATION OPTIONS FOR NANNIES

    Many parents benefit from the assistance of a nanny. When people who are living abroad return to or visit the United States, they may want their nanny to join them. Nannies become part of the family, and finding a new or temporary nanny in the United States can be difficult and disruptive.

    Other parents live in the United States but find it difficult to locate a reliable nanny who is willing to accept long-term employment. Those parents might look to nations that have a history of training caregivers to work abroad.

    Unfortunately, some parents bring a nanny to the United States on a tourist visa that does not allow the nanny to work. They may encourage the nanny to work illegally and to overstay a visa. That can create legal problems both for the parents and for the nanny.

    Bringing a nanny to the United States to work legally is possible, but it often requires careful planning. Getting advice from an immigration attorney is the best starting point.

    Domestic Workers Accompanying Travelers

    When a parent ordinarily lives outside of the country and plans to travel to the United States for a limited period of time, a B-1 visa may be the best option for having a nanny accompany the traveler on that trip. A B-1 visa authorizes a visitor to enter the United States temporarily for a business purpose. In this case, the business purpose would be to provide childcare or other services to the traveler.

    A B-1 visa may be available if the nanny’s employer is:

    • a United States citizen who lives abroad permanently, or is stationed abroad in connection with government or military service, and will be returning to the United States for a visit or temporary assignment; or
    • a citizen of another country who is entering the United States with a nonimmigrant visa.

    In addition to a nanny, the employer can ask for a B-1 visa to have other kinds of family helpers accompany the employer, including eldercare companions, cooks, and maids.

    To obtain a B-1 visa for a family helper, the employer will need to enter into an employment contract with the helper that includes specific terms. Many of those terms (such as a guarantee that the employer will not withhold the helper’s passport) are intended to protect the helper from exploitation. An immigration lawyer can make sure an appropriate employment contract is in place.

    The nanny will generally need to submit a visa application and attend an interview at a U.S. Embassy or Consulate. The B-1 visa is usually issued for 6 months but it can be extended.

    Domestic Workers for U.S. Residents

    Residents of the United States have a few options if they want to hire a nanny from another country. An immigration attorney can help families decide which option is best for their situation.

    EB-3 Visa

    One popular option is to sponsor the foreign resident for an EB-3 immigration visa. The EB-3 Green Card allows skilled workers to live and work in the United States. The process of obtaining an EB-3 visa has been simplified by the Program Electronic Review Management (PERM) program, administered by the Department of Labor. Nannies are categorized as skilled workers by the PERM program. To apply for PERM, they must have:

    • a job offer for a full-time, permanent position in the United States, and
    • qualifications for the position, as certified by the Department of Labor.

    To qualify for certification, nannies need to have at least 2 years of relevant experience or training. Nannies may need to satisfy the Department of Labor that they are proficient in:

    •  Administering CPR
    • Recognizing symptoms of illness
    • Assuring that the child’s environment is safe
    • Assuring that the child receives nutritional meals
    • Organizing age-appropriate activities for the child
    • Administering appropriate discipline
    • Communicating clearly with the child

    The nanny’s employer will need to demonstrate that no qualified workers for the position are available in the United States. That demonstration may require employers to prove that they advertised for the position, placed job orders with state employment agencies, and took other unsuccessful steps to find a qualified nanny in the United States before making a job offer to a nanny from another country.

    An EB-3 visa is most likely to be issued when an employer has kept careful records of the steps taken to find a nanny in the United States, and when the job is offered to someone who has records establishing the necessary training or experience. An immigration attorney can help families assemble the information needed to maximize the opportunity to obtain an EB-3 visa.

    H-2B Visa

    An H-2B visa is available for temporary, nonagricultural workers. Like the EB-3 visa, an employer must satisfy the government that United States residents are not available to fill the position before an H-2B visa will be issued. Unlike the EB-3 visa, the H-2B visa does not entitle the nanny to permanent residence.

    An H-2B visa is typically issued for one year. It can be extended, but not for longer than 3 years. The employer must pay wages that equal the prevailing market rate for nannies.

    There is a cap on the number of H-2B visas the government can issue each year, and residents of some countries are not eligible. Unlike the J-1 visa discussed below, the H-2B visa does not require the employer to go through a host sponsor. The H-2B visa is a good choices for parents who have already identified the nanny they want to hire, but do not want to sponsor the nanny as a permanent resident.

    J-1 Visa

    Another option is to seek a J-1 visa. The J-1 program allows nonimmigrant visitors to engage in a work-study experience in the United States. Unlike the options discussed above, the host family does not need to prove that local nannies are unavailable.

    The J-1 Au Pair program allows host families to sponsor a foreign resident who will provide au pair services to the family for one year with an option to extend for up to another year. To be eligible, the au pair must be:

    • fluent in English;
    • a high school graduate (or equivalent);
    • between 18-26 years old;
    • physically capable of performing the job;
    • personally interviewed, in English, by the program sponsor; and
    • able to pass a background investigation that includes psychometric testing.

    The au pair can provide up to 45 hours of childcare per week. The au pair must also attend and complete at least 12 semester hours of post-secondary education during the first year, and additional coursework if the contract is extended. Whether to extend the au pair’s stay after the first year is up to the host family.

    The family typically pays $500 toward the cost of the au pair’s coursework (or the full cost if it is less than $500) for each year of participation. The host family also pays weekly wages to the au pair (typically $250 to $450 per week) and must pay the program sponsor for its services (typically between $7,500 and $12,500).

    The program sponsor trains and orients the au pair and screens potential host families. The host family must provide the au pair with a private room and three meals per day.

    Getting Advice

    Which of these options is best will depend on a family’s circumstances and needs, as well as the availability of each kind of visa. Consultation with an immigration lawyer will help a family decide which approach to take in bringing a nanny from another country to the United States.